Harris v. Hardeman et al.

and to order and direct the appellees to repay to the appellant the sum of $441.02, with the State interest thereon, of eight per cent. from the time it was received by their solicitor from the marshal.

BENJAMIN D. HARRIS, PLAINTIFF in error, v. WiLLIAM HARDEMAN, HENRY R. W. HILL, COTESWORTH P. SMITH, AND HENRY A. MOORE.

A statute of Mississippi directs that where the defendant cannot be found, a writ of capias ad respondendum shall be served, by leaving a copy thercof with the wife of the defendant, or some free white person above the age of sixteen years, then and there being one of the family of the defendant, and found at his usual place of abode, or leaving a copy thereof at some public place, at the dwelling-house or other known place of residence of such defendant, he being from home, and no such free white person being found there willing to receive the same. The Circuit Court of the United States adopted a rule that the capias should be served personally, or, if the defendant be not found, by leaving a copy thereef at his or her residence, or usual place of abode, at least twenty days before the return day thereof.

The marshal made the following return to a writ of capias: "Executed on the defendant Hardeman, by leaving a true copy at his residence."

This service was neither in conformity with the statute nor the rule.

Therefore, when the court gave judgment, by default, against Hardeman, and an execution was issued, upon which a forthcoming bond was given, and another execu. tion issued, and at a subsequent day the court quashed the proceedings, and set aside the judgment by default, this order was correct.

When the judgment by default was given, the court was not in a condition to exercise jurisdiction over the defendant, because there was no regular service of process, actual or constructive.

The cases upon this point, examined.

Moreover, when the proceedings were quashed, they were still in fieri, and not terminated; and any irregularity could be corrected, on motion.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.

The facts are stated in the opinion of the court.

It was argued by Mr. Nelson for the plaintiff in error, and Mr. Freeman for the defendant.

Mr. Nelson contended that the judgment of the court below was erroneous, and referred to the following authorities.

To show that the bond was regularly taken under the Mississippi statute. Hutch. Code, 910, Art. 6, sec. 2; Howard & Hutch. 653, sec. 73.

The ground of the motion made by the defendants in error, in the court below, was, that the original judgment was void for

Harris v. Hardeman et al.

want of notice; and that being void, the process issued upon it and the bond taken under that process, were nullities.

It may be true that the return of the service of notice was insufficient. Smith v. Cohen, 3 Howard, (Miss.) 35; Tomlinson v. Hoyt, 1 Smedes & Marsh. 515; Eskridge v. Jones, Id. 595.

But that was matter to be considered and passed upon by the court rendering the judgment. Fatheree v. Long, 5 Howard, (Miss.) 661; Smith v. Bradley, 6 Smedes & Marsh. 492.

Besides, the defendants were estopped, by the execution of the bond, from denying the validity of the judgment and the execution. Bank U. S. v. Patton, 5 Howard, (Miss.) 200; Miller v. Patten, 3 Smedes & Marsh. 463; Keringham v. Scanland, 6 Howard, (Miss.) 540; Field v. Morse, 1 Smedes & Marsh. 347; Conn v. Pender, 2 Smedes & Marsh. 386; Pender v. Felton, 2 Id. 535; Clowe v. Tharpe, 3 Id. 64; McCoul v. Ellet, 8 Id. 505. The bond was regularly forfeited. Barker v. The Planters Bank, 5 Howard, (Miss.) 566; Puckett v. Graves, 6 Smedes & Marsh. 384; Talbert v. Melton, 9 Id. 9; Dowd v. Hunt, 10 Id. 414.

And the forfeiture of the bond extinguished the original judgment. Davis v. Dixon, 1 Howard, (Miss.) 64; Weathersby v. Proby, Id. 98; Witherspoon v. Spring, 3 Id. 60; Binny v. Stanton, 2 Smedes & Marsh. 457.

Moreover, the return was in conformity with the rule of

court.

To show the validity of said rule, the plaintiff in error relied upon the act of Congress of the 24th September, 1789, sec. 34, (Laws U. S. vol. 1, 93); Act of 2d March, 1793, sec. 7, (Laws U. S. vol. 1, 335); Act of 19th May, (Laws U. S. vol. 4, 279); Wayman v. Southard, 10 Wheaton, 1; Beers v. Haughton, 9 Peters, 330, 360, 361; Fullerton v. Bank U. S. 1 Peters, Sup. Ct. Rep. 612; Williams v. Bank U. S. 2 Id. 96; Amiss v. Smith, 16 Peters, 303.

Mr. Freeman, for defendant in error.

In this case, a motion was made in the court below, to quash the forthcoming bond, and vacate the original judgment. It was sustained upon the ground of the judgment being a nullity, there having been no service of process upon Hardeman, and no appearance entered for him.

It will be conceded, that if there be no notice, actual or constructive, the judgment is a nullity. 4 Peters's Rep. 474; 2 Yerger's Rep. 484; 11 Wendell's Rep. 652; 15 Johnson's Rep. 141; 1 Smedes & Marshall's (Miss.) Rep. 351. There was no "actual service" of process on Hardeman, as is shown by the marshal's return. Did he have constructive notice? The statute

Harris v. Hardeman et al.

of Mississippi provides, when the defendant is not found, that constructive service may be made, and points out the mode. Howard & Hutchinson's Dig. 583, sec. 27. The statute was not complied with in executing the writ in this case. It was served by leaving a copy at defendant's residence. And is not even dated. In construing this statute, the court of last resort in Mississippi, have several times held such service to be bad. As, for example, in the case of Smith v. Cohea, (3 Howard's Miss. Rep. 35,) it is held that a return on a writ "executed by leaving a copy at the boarding-house of the defendant," is insufficient. So, also, in the case of Fatheree v. Long, (5 Howard's Miss. Rep. 661,) it is held that the return "executed by leaving a copy at the defendant's house," is bad. And the court goes on to say, that when the service is not personal, the return must show that the requirements of the statute were complied with. A similar exposition of the statute was given in the cases of Tomlinson v. Hoyt, and Eskridge v. Jones, 1 Smedes & Marshall's Rep. 515 and 595.

Had this motion been made at the term next succeeding that at which the judgment was rendered, no one would doubt Hardeman's right to the relief sought by it. Does the giving and forfeiture of the forthcoming bond, and the lapse of time, bar his right?

It is believed that if the giving and forfeiture of the forthcoming bond does not bar, the mere lapse of time cannot. For there is no time limited by the statute within which such a motion may be made. That the giving and forfeiture of the forthcoming bond interpose no obstacle to the motion, is clear. It is true, the court of last resort in Mississippi, has frequently decided that a motion to quash a forthcoming bond, must be made at the term to which it is returnable. 6 Howard's Miss. Rep. 540; 1 Smedes & Marshall's Rep. 347; Id. 386. Yet the same. court has held that when the judgment is absolutely void for want of jurisdiction in the court rendering it, either of the subject-matter, or over the parties, the forthcoming bond is absolutely void also, and subject to be quashed, on motion, at any time, either at, or subsequent to the return term. Buckingham v. Bailey, 4 Smedes & Marshall's Rep. 538.

A stronger reason may be added in this court. Here the forthcoming bond is treated and considered as part of the process of the court. 16 Peters's Rep. 312, 313. In this case, that process is founded upon a judgment confessedly void. The court can always control its own process; and will never permit void writs to be issued and executed, when brought to its attention.

And it can make no difference whether the effort to resist

Harris v. Hardeman et al.

the issuance and execution of such process is made within one, or after a lapse of ten years, fron, the date of the void judgment.

A rule of court, adopted by the District Judge, (Judge Adams,) is relied on to show that the execution of the process upon Hardeman, was sufficient. Upon this, I remark:

1. That even if the rule be valid, the service is not good, for it has no date; and it does not appear, therefore, that it was executed "fifteen days" before court, so as to give jurisdiction of the person.

2. The District Judge has no power to adopt such a rule. 16 Peters's Rep. 314. The decision of the Circuit Court should therefore be affirmed.

Mr. Justice DANIEL delivered the opinion of the court.

The defendants in error moved the Circuit Court to quash a forthcoming bond, executed by the defendants to the plaintiff; and to set aside the judgment on which the bond was founded, upon the grounds that the forthcoming bond was taken in execution of a judgment entered against the defendant Hardeman, as by default, when in truth there had been no service of original or mesne process upon him to warrant such a judgment. The facts and proceedings in this case, as disclosed by the record, are as follow: The plaintiff in error, in March, 1839, instituted in the Circuit Court an action on a promissory note against the defendant and three others; and upon the writ sued out in that action, the marshal, on the 9th of April, made a return in these words: "Executed on the defendant Hardeman, by leaving a true copy at his residence." Upon this return of the officer, at the next succeeding or return term of the court, in May, 1839, a judgment by default for want of appearance, was taken against the defendant Hardeman for the amount of the note, with interest and costs. Amongst other proceedings upon this judgment, a writ of fieri facias was sued out in March, 1840, was levied on sundry slaves, the property of Hardeman, and the forthcoming bond in question executed by him on the 20th of April, 1840. In pursuance of this forthcoming bond another fieri facias was sued out on the 11th of June, 1840, and upon this last writ was indorsed on the 8th of October, 1840, a cessat executio by the plaintiff's attorney.

By the statute of Mississippi regulating proceedings in courts of law, the following modes for the service of process in certain cases, are prescribed: "All writs of scire facias and capias ad respondendum, where no bail is required, may be served in the following manner: Where the defendant cannot be found, it shall be deemed sufficient service of such writ for the sheriff or VOL. XIV.

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Harris v. Hardeman et al.

other officer to whom the same is directed, to leave a copy thereof with the wife of the defendant or some free white person above the age of sixteen years, then and there being one of the family of the defendant, and found at his usual place of abode, or to leave a copy thereof at some public place at the dwelling-house, or other known place of residence of such defendant, he being from home, and no such free white person being found there willing to receive the same."

On the 18th of June, 1838, the District Judge for the Southern District of Mississippi, in the absence of the circuit or presiding Judge, caused to be entered on the minutes of the Circuit Court, as a rule of proceeding in that court, an order in the following words, viz., "The capias ad respondendum shall be served by arresting the defendant, unless bail be waived; or where bail be waived, or a summons shall issue, the same shall be served personally, or if the defendant be not found, by leaving a copy thereof at his or her residence, or usual place of abode, at least twenty days before the return day thereof, to entitle the plaintiff to á trial or judgment by default at the return term."

The action in this case was commenced by a summons, and the marshal's return of the service of that process, and the judgment thereupon by default at the return term, and the subsequent proceedings upon that judgment, were as have been already stated.

Upon the application of the defendant Hardeman, at the May term of the Circuit Court, in the year 1850, until which time the proceedings in this case had been stayed, the court quashed the forthcoming bond and fieri facias sued out thereon, and set aside the judgment purporting to be a judgment by default against the defendant, as being unwarranted upon the face of the proceedings, and therefore void.

In reviewing the decision of the Circuit Court, it should be borne in mind, as a rule to guide and control our examination, that the judgment impugned before that court was a judgment by default, and that in all judgments by default, whatever may affect their competency or regularity, every proceeding indeed, from the writ and indorsements thereon, down to the judgment itself, inclusive, is part of the record, and is open to examination. That such cases differ essentially, in this respect, from those in which there is an appearance and a contestatio litis, in which the parties have elected the grounds on which they choose to place the controversy, expressly or impliedly waiving all others. In support of the rule just stated, many authorities might be adduced; we cite for it the cases of Nadenbush v. Lane, 4 Ran. 413, and of Wainwright v. Harper, 3 Leigh, 270.

Within the scope of this rule, two inquiries present themselves